Essays in the History of Early American Law

Essays in the History of Early American Law

EDITED WITH AN INTRODUCTION BY David H. Flaherty
https://www.jstor.org/stable/10.5149/9780807839898_flaherty
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    Essays in the History of Early American Law
    Book Description:

    This collection of outstanding essays in the history of early American law is designed to meet the demand for a basic introduction to the literature of colonial and early United States law. Eighteen essays from historical and legal journals by outstanding authorities explore the major themes in American legal history from colonial beginnings to the early nineteenth century.Originally published in 1969.A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

    eISBN: 978-1-4696-1128-0
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. PREFACE
    (pp. v-viii)
    David H. Flaherty
  3. CONTRIBUTORS
    (pp. ix-x)
  4. Table of Contents
    (pp. xi-xii)
  5. PART ONE: GENERAL INTRODUCTION
    • I An Introduction to Early American Legal History
      (pp. 3-38)
      DAVID H. FLAHERTY

      The outlines of the history of early American law present a number of neatly defined problems that can serve initially to establish the dimensions of the field. A significant number of Englishmen settled in a series of different colonies in the New World in the seventeenth century. The motives and background of each group of settlers varied. The new colonies were independent of one another and enjoyed varied rates of growth in all spheres. By what laws did these residents of the New World choose to be governed? How did they envision the role of law in their society? What...

  6. PART TWO: THE SEVENTEENTH CENTURY
    • II Law and Colonial Society
      (pp. 41-52)
      GEORGE L. HASKINS

      It has been observed that if we are ever to have a competent legal history of the American colonial period, “some way will have to be found for getting scholars and colonial court archives together.”¹ It may also be observed that some way must be found to familiarize historians with the nature and function of law in particular colonial societies. These two objectives are the subject matter of the present paper, which is essentially a plea for more attention to colonial law by historians and their students. Certainly the time for an artistically balanced picture of colonial law has not...

    • III Colonial Courts and the Common Law
      (pp. 53-82)
      ZECHARIAH CHAFEE JR.

      When men settle in a new land, they cannot be there long without having law of some kind to adjust their disputes and regulate important transactions. They will have to put this law in operation themselves whenever the land is vacant or thinly peopled by natives who have no power over the settlers from outside. What sort of law will the settlers establish? This is a fascinating problem. Yet, so far as I know, it has not been the subject of any comprehensive study in connection with migrations in general, and historians writing on a particular migration have so much...

    • IV King’s Law and Local Custom in Seventeenth Century New England
      (pp. 83-120)
      JULIUS GOEBEL JR.

      The first century and three-quarters of American legal development is bounded by two landmarks which have served as monuments to those historians who have attempted to survey the field of colonial law. The first of these is the royal charter; the second is the so-called reception statute. The former with its mandate that the law in the lands granted should be agreeable or not repugnant to the law of England,¹ is commonly regarded as a forecast of what was to transpire. The latter, with its declaration that the common law of England, in so far as it had been adopted...

    • V The Legal Heritage of Plymouth Colony
      (pp. 121-134)
      GEORGE L. HASKINS

      More than one legal historian has more than once drawn attention to the contributions that Plymouth Colony made to American law in the seventeenth century.¹ Yet recent general studies continue to insist that Plymouth made few permanent contributions of any kind to the American heritage. Thus, Samuel Eliot Morison, dean of American colonial historians, writes that nearly all American historians are now agreed upon “the insignificance of the Plymouth Colony in the colonial era.”² “By any quantitative standard,” he says, “it was one of the smallest, weakest, and least important of the English colonies.”³ “Massachusetts Bay, rather than Plymouth Colony,...

    • VI Massachusetts and the Common Law: The Declaration of 1646
      (pp. 135-146)
      RICHARD B. MORRIS

      The theory of the transplantation of the common law to this country has given rise to a moot question in American legal history. The dicta of our modern decisions, predicated in large measure on untenable historical grounds, are of little service in the study of this problem.¹ One reason for misapprehension has been the undue weight accorded to authorized statements of legal policy. In Massachusetts pre-eminently, historians, in seeking to comprehend therationaleof early legal development, have here encountered a decoy leading far afield. The remonstrance to the Massachusetts General Court of Robert Child and other recalcitrants in 1646...

    • VII The Laws and Liberties of 1648
      (pp. 147-185)
      THORP L. WOLFORD

      In 1906 theNew York Evening Post, under the heading, “The Most Valuable American Printed Book,” announced that a copy of the long lostLauues and Libertyes Concerning the Inhabitants of Massachusetts, of which six hundred had been printed in 1648, had been found in a library in distant Rye, England.¹ If not then, at least after the book was reprinted in facsimile type, with introduction by Max Farrand,² one might have expected considerable historiography to follow. Such has not been the case.³

      This remarkable apathy on the part of legal historians can in no way cast doubt upon the...

    • VIII The Spread of Massachusetts Law in the Seventeenth Century
      (pp. 186-191)
      GEORGE L. HASKINS and SAMUEL E. EWING

      No history of the colonial period will be complete until the spread of ideas from colony to colony has been fully investigated. Intercolonial relations have received considerable attention,¹ but the processes by which, and the extent to which, patterns of life and thought were carried from colony to colony still await detailed exploration.

      A significant chapter in the history of those processes is the spread of legal ideas and institutions. One phase of that topic can be illumined by an investigation of the effect of the legislation of one colony upon that of others. Thus, it is clear that certain...

    • IX The Suffolk County Court, 1671-1680
      (pp. 192-203)
      GEORGE E. WOODBINE

      During the past year two notable contributions have been made to the hitherto much too neglected field of American colonial legal history. Under the auspices of the American Historical Association Judge Bond brought out the Proceedings of the Maryland Courts of Appeals, and now Professors Chafee and Morison make available for us these Massachusetts documents of a full generation or more earlier.

      Though some court records of this general nature have long been accessible in printed form, they have been slighted by most of those who have written on the subject of colonial law in favor of the seemingly more...

    • X The Beginnings of Partible Inheritance in the American Colonies
      (pp. 204-244)
      GEORGE L. HASKINS

      Thomas Jefferson’s attack on primogeniture in 1776¹ is generally considered to have led the way in America for the laws abolishing the descent of fee simple estates to the eldest son. Under these statutes for well over a hundred years the rule has prevailed in the United States that when a person dies intestate, seised of real property in fee simple, such property descends equally to his or her children, subject to the rights of the surviving spouse. Variations appear with respect to succession by the next of kin according to the state statutes of distribution, but among children entitled...

    • XI The Courts and the Law in Colonial New York
      (pp. 245-278)
      JULIUS GOEBEL JR.

      It is only in recent years that what men said and did in law courts has come to be regarded as an important source of information for social history. Our attention has been focused upon the more material evidences of how our ancestors lived, and we have preferred to look aside when we came upon their quarrels or their lapses from grace, except in so far as these incidents may have had some bearing upon political developments. Moreover, the circumstance that useful facts are often concealed by the murky penumbra of technical legal detail has made the laymen reluctant to...

  7. PART THREE: THE EIGHTEENTH CENTURY
    • XII Administrative Control of the Courts of the American Plantations
      (pp. 281-335)
      JOSEPH H. SMITH

      Studies of the imperial control of the administration of justice in the American plantations in the seventeenth and eighteenth centuries have tended to concentrate on the appellate jurisdiction of the King in Council or the Privy Council over the various colonial courts—common law, chancery, probate, and admiralty.¹ Yet an important adjunct to the control of the various plantation judiciaries by conciliar appeals was the regulation exercised by the disallowance of colonial legislation by the King in Council. While the appellate process was of greatest importance for individual litigants, the legislative review process had far greater effect upon colonial judicial...

    • XIII The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law
      (pp. 336-366)
      CHARLES McLEAN ANDREWS

      The colonial era of our history has generally been treated with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth century, and in the following paper I hope to show why I think that, from the point of view of the English policy toward the colonies and their economic development, this period will in the future stand much...

    • XIV “Law Enforcement in Colonial New York:” An Introduction
      (pp. 367-391)
      JULIUS GOEBEL JR.

      The prospects of independence so lately declared were dark, indeed, when in 1777 the embattled New Yorkers resolved as a part of their constitution that the acts of the provincial legislature, and such parts of the common law and the statutes of England and Great Britain as “together did form the law of the … colony” on the day of the battle of Lexington, were to be the law of the new state.¹ It is impossible not to believe that this was done for pressing immediate need, when one sees how the records of the country Sessions courts break off...

    • XV The Rise of the New York Bar: The Legal Career of William Livingston
      (pp. 392-417)
      MILTON M. KLEIN

      On the eve of the American Revolution, the legal profession in New York possessed both social prestige and political power. The terms “lawyer” and “merchant,” Crèvecoeur noted in hisLetters from an American Farmer, were the two “fairest titles” in colonial urban society. In New York, the “Dominion of the Lawyers” was a ceaseless complaint of one loyal servant of the King. Lieutenant Governor Cadwallader Colden warned the English authorities that the New York bar, with their landlord allies and their friends in the Assembly, comprised a “faction” that was at once “formidable and dangerous to good Government” and a...

    • XVI Legalism versus Revolutionary Doctrine in New England
      (pp. 418-432)
      RICHARD B. MORRIS

      No exposition of New England’s intellectualmilieuin the Revolutionary Era can progress far without being confronted with a significant paradox. That the front rank in leadership in the cause of political independence should have been assumed by a group of men who were largely responsible for bringing America into subjection to the reactionary legal system of England prevailing in the eighteenth century, that Revolutionary ideals should have blossomed in the barren soil of the common law—these are the twin phenomena which challenge historical explanation.

      Ever since Edward Burke made the discovery that the “untractable spirit” of the colonists,...

    • XVII The Process of Outlawry in New York: A Study of the Selective Reception of English Law
      (pp. 433-450)
      MARK DeWOLFE HOWE

      It has been said that “one of the chief difficulties confronting a student of our legal history is that the whole subject of the reception of English law, both common and statutory, was not thought out in any consistent way, but was left unsettled and in the air.”¹ It is doubtless true that during the colonial period the selective reception and discriminating rejection of English law had, in large part, been the product of empiricism, and that coherent theory had done little to clarify the nature of the process.² Some of the colonies, however, were aware of the importance of...

    • XVIII Thomas Jefferson and Blackstone’s Commentaries
      (pp. 451-488)
      JULIUS S. WATERMAN

      The lectures of Blackstone, begun at Oxford in 1753, were the first to be delivered on English law in any university, and with their publication from 1765 to 1769, brought renown¹ to one whose success before had been in college administration and not in law.² Nevertheless, the published lectures met with criticism in England. Jeremy Bentham, a student of Blackstone who listened “with rebel ears,” soon wrote an attack³ on the constitutional principles of the Commentaries, described as “the most trenchant critique ever penned by a youthful pupil on the doctrines of a celebrated teacher whose dogmas were accepted by...

    • XIX Delaware Cases, 1792-1800
      (pp. 489-513)
      ZECHARIAH CHAFEE JR.

      Between approximately 1792 and 1830 several Delaware lawyers compiled elaborate notebooks of the cases that they argued or witnessed in different courts, with occasional additions from similar reports made by others. The volumes under review by Professor Chafee reprint these notebooks as edited by Daniel J. Boorstin. The notebooks are particularly important, because they contain the court’s statement of law and the reasoning of the judges, which are generally missing from earlier court records. Professor Chafee chose to base his review only on the material before 1801, because of the comparative scarcity of other printed judicial opinions during the eighteenth...

  8. Glossary
    (pp. 514-522)
  9. Index
    (pp. 523-534)